R. v. Starr, 2021 BCPC 298

Citation: R. v. Starr 2021 BCPC 298 Date: 20211126 File No: 34726-1, 34726-4-S Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLARKE THOMAS STARR ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: C. Ducluzeau, by telecommunication Counsel for the Defendant: M. Griffith-Zahner, Duty Counsel, by telecommunication Place of Hearing: Williams Lake , B.C.

Date of Hearing: November 26, 2021 Date of Judgment: November 26, 2021 [ 1 ] Thirty-one-year-old Clarke Thomas Starr has admitted the allegation of breach of a conditional sentence that was filed on October 1, 2021. The allegation that has been admitted to, both by Mr. Starr personally and through the instructions he gave to his

counsel, Mr. Griffith-Zahner, a very experienced lawyer, is that he did fail to attend in person to his conditional sentence supervisor as hewas required to do pursuant to the 120-day conditional sentence order that was imposed by my colleague, Judge Armstrong, onSeptember 22, 2021. [2] One can in retrospect argue that perhaps a conditional sentence order should have never been imposed in the first place, givenMr. Starr's challenges as a person who is addicted to fentanyl and having housing issues.

Yet, as a Haisla man living in his traditionalterritory here in the Central Northwest part of British Columbia, with no criminal history at the time of his sentencing, it was not only anappropriate sentence, but it aligned with the teachings of the Supreme Court of Canada in R. v. Gladue, (SCC), [1999],1 S.C.R. 688. [3] Mr. Starr comes before the court today with a minimal criminal history that includes only the index offences of assault causingbodily harm on September 22, 2021; breach of undertaking, September 22, 2021; and assault September 22, 2021. Judge Armstrongsentenced Mr.

Starr, as I indicated earlier, to a 120-day conditional sentence order. Judge Armstrong also imposed one year of probationand a three-year long discretionary firearms prohibition. [4] The admitted facts of the breach of conditional sentence order are:

a) Having been released on the conditional sentence order by Judge Armstrong on September 22, 2021, condition 3 of whichrequired Mr. Starr to attend in person by noon on September 23, 2021 to the Prince Rupert Community Corrections office, Mr. Starrinstead telephoned the Terrace Community Corrections office in Terrace, British Columbia at 4:15 P.M..

b) Mr. Starr spoke to a supervisor at the Terrace Community Corrections office. Mr. Starr indicated that he did not really want toreport in person. He asked, "Why do I have to?" Mr. Starr was told by the supervisor that he needed to have his conditional sentenceorder reviewed with him and, in fact, the supervisor, who was also, I take it, Mr. Starr’s bail supervisor previously, attempted to reviewMr. Starr’s conditional sentence order with him over the telephone.

c) The process made Mr. Starr angry. He told the supervisor that he was sick of having his orders reviewed with him and that hedid not want to do it over the telephone. With that, the supervisor told him, "Well, you don't have time to get here today, but you cancome tomorrow, then, in person to the Terrace office." Mr. Starr indicated that he would, but he did not.

d) The following day, Friday, September 24, 2021, the conditional sentence supervisor contacted a Kitsumkalum Health Centreworker who had been working with Mr. Starr. She was unaware of Mr. Starr’s whereabouts or how to contact him.

e) On the following Friday, October 1, 2021, a different conditional sentence supervisor did a review of the Canadian CorrectionsCORE Net database and confirmed that Mr. Starr had not reported to any Community Corrections office in British Columbia. With that,the allegation of breach of conditional sentence was prepared and submitted. [5] As I indicated earlier, and as told to me by Mr. Griffith-Zahner, Mr. Starr is a First Nations man and member of the HaislaNation.

I think it is important that the court recognize the fact that here in the Central Northwest part of British Columbia, systemicfactors arising out of colonization, including the residential school tragedy that has been in the press over the last year or two, but hasexisted since the 19th Century, have created a situation where now generation after generation of First Nations people have been unableto get the same breaks and treatment that not only the original European colonizers, but also the other settlers from throughout the worldwho have come to Canada to live, have received. [6] Indigenous peoples in Canada -- whether First Nations, Inuit or Métis -- have been put last.

Our society and the government, forwhatever reason, have been unable or unwilling to solve the crisis. Mr. Starr, with a fentanyl substance abuse problem, homelessness,and what appears to be some antisocial tendencies perhaps out of fear, perhaps how he has been treated in the past, perhaps because hedoes not know any different, now finds himself back in custody, having breached his conditional sentence order. [7] The teachings of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, are especially helpful and I would sayapplicable to Mr. Starr's case.

Sharma is the decision wherein the Ontario Court of Appeal declared that s. 742.1(

c) and 742.1(e)(ii) ofthe Criminal Code unjustifiably infringe s. 7 and 15 of the Charter and are, therefore, of no force and effect. Justice Feldman for themajority in Sharma at paragraph 70 stated the following: [70] Aboriginal offenders start from a place of substantive inequality in the criminal justice system.

The overincarceration ofAboriginal people is one of the manifestations of that substantive inequality, which prompted Parliament to create the community-basedconditional sentence and direct sentencing judges to consider that sanction, along with all others that do not involve imprisonment, whendetermining an appropriate punishment for Aboriginal offenders. The conditional sentence is one means of redressing the substantiveinequality of Aboriginal people in sentencing. It is certainly the case that conditional sentences are available to all offenders, not justAboriginal offenders.

However, the legislative history and jurisprudence demonstrate that conditional sentences take on a uniquesignificance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic overincarceration. Byremoving that remedial sentencing option, the impact of the impugned provisions is to create a distinction between Aboriginal and non-Aboriginal offenders based on race. [8] In his book, Bad Judgment - The Myths of First Nations Equality and Judicial Independence in Canada, retired AlbertaProvincial Court Judge John Reilly makes an astute observation at page 5 that holds true in Mr.

Starr's case: One of the most important lessons I learned during my efforts to improve the delivery of justice to Aboriginal people is that "same" is not"equal." When you treat people who are unlike as it they are alike, you are practicing systemic discrimination. You can achieve trueequality when you take account of the differences. The most common symbol of Justice is a blindfolded woman holding a set of scales. The scales of course are the judicial system:everything in favour of the offender goes on one side; everything against him goes on the other.

When everything is properly weighed, adecision will be made for or against the accused. But what do we do if the scales are weighted against the accused before we even start?

We either take weight off the heavy side or we put some onto the light side, or perhaps a little of each, to bring them into balance. In the case of Aboriginal offenders we can unweight the heavy side by acknowledging the inherent bias in the system, or we can weight the light side by acknowledging the right of these offenders to be treated differently. This is not to give the Aboriginal accused an unfair advantage but rather to give them equality by taking away disadvantage.

Reilly, John, 2019, Bad Judgment - The Myths of First Nations Equality and Judicial Independence in Canada , Calgary, Rocky Mountain Books Ltd. [ 9 ] When I consider that Mr. Starr is 31 years of age and has the minimal criminal history that he does, I have nothing but hope for Mr. Starr. I believe in Mr. Starr, even if Mr. Starr is perhaps not believing in himself at the current moment. I believe that the Haisla Nation wants him, as a member of their First Nation, to succeed in life. When I look at the uniqueness of Mr.

Starr's situation, battling fentanyl, battling homelessness, struggling to survive in British Columbia’s somewhat isolated Central Northwest region, I am prepared to give him another opportunity. [ 10 ]

Section 742.6(9) of the Criminal Code says the following: Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

a) take no action;

b) change the optional conditions;

c) suspend the conditional sentence order and direct (

i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or

d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. [ 11 ] Ms. Ducluzeau, fairly for the B.C. Prosecution Service, has argued that given the aggravating facts of the original underlying substantive offence, I should utilize s. 742.6(9) (d), terminate the conditional sentence order and direct that Mr. Starr be committed to custody until the expiration of his conditional sentence order. Mr. Griffith-Zahner, on behalf of Mr.

Starr, says, "No, recognizing the factors that you have just set out, Your Honour, you should do the following: suspend the conditional sentence order and direct that Mr. Starr serve only a portion of his unexpired sentence, a short portion, in custody, and then allow his conditional sentence order to resume on his release from custody." [ 12 ] I have considered both and, counsel, frankly, I am not going to do either.

I am going to change the optional conditions and how I am going to change that is as follows. [ 13 ] So, in relation to the conditional sentence order, I am going to change Condition Number 3 to read: Report in person to a conditional sentence supervisor at the Terrace Community Corrections office, the address and telephone phone of which will be placed into the conditional sentence order for you, by 3:00 p.m. on Monday, November 29, 2021, and after that, you must report as directed by your supervisor. That is the change I am making. [ 14 ] Mr.

Starr, I am not going to be making you spend any more time in custody, but I need to tell you this and you need to listen to this, I suspect that if you breach the conditional sentence order again, that you will have a much more difficult time convincing a judge that you should not stay in custody for some or all of the remaining time of your conditional sentence order. I believe in restorative justice. I know the Haisla Nation believes in restorative justice. I am told your father is a counsellor and he, no doubt, believes in restorative justice.

I simply need you to believe in restorative justice and to participate and to find out why the demons in your life are what they are. It will not be simple, it will not be easy, but it is the right thing to do. I have hope and a belief in you. I am just hoping you believe in yourself. [ 15 ] So that is my decision for today. Mr. Starr will released out of custody today once he has signed the conditional sentence order as amended. So all conditions remain the same with the exception of Condition Number 3, which is the change I just made, Madam Clerk. [ 16 ] Mr.

Starr, do you have any questions for me? [ 17 ] THE ACCUSED (by videoconference): No. No. [ 18 ] THE COURT: I appreciate you are frustrated with the system. I appreciate that you do not want to have to go in and talk to more people than you have to. And you have to do it by Monday, at three o'clock, at the Terrace Community Corrections office because you have told me, and I have accepted, that when you get out of custody, you are going to get a ticket for the bus. You are going to take the bus to Terrace. You are going to check into the shelter in Terrace.

So you will be in Terrace on Monday and, on Monday before three o'clock, you need to go to the Community Corrections office. Do you understand that? [ 19 ] THE ACCUSED: Yes. [ 20 ] THE COURT: Do you agree to do that, sir? [ 21 ] THE ACCUSED: Yes. [ 22 ] THE COURT: All right, thank you very much.

[ 23 ] Ms. Ducluzeau, anything else from the Crown's perspective? [ 24 ] CNSL C. DUCLUZEAU: Perhaps maybe the court wants to emphasize to Mr. Starr that he has to go there in person and thereafter as directed. So if they work it out, he can maybe appear by phone. [ 25 ] THE COURT: Do you understand that, Mr. Starr? You need to do what your conditional sentence supervisor tells you. If they say you have to physically go to the office, then you, unfortunately, have to physically go into the office. If they say you can telephone, then you can telephone.

Do you understand that? [ 26 ] THE ACCUSED: Yes. [ 27 ] THE COURT: All right. 120 days seems like a long time, but if you do what you need to, you will be better for it. I honestly believe that, sir. [ 28 ] Mr. Griffith--Zahner, anything else from your perspective? [ 29 ] CNSL M. GRIFFITH-ZAHNER: No, Your Honour. I just want to canvass with Mr. Starr, I did speak to your dad. Do you have any personal possessions at your dad's residence? [ 30 ] THE ACCUSED: All of my clothes are at his house. [ 31 ] CNSL M.

GRIFFITH-ZAHNER: Okay, do you think you are going to be able to go back there to get those clothes without difficulties or would you need the RCMP to attend with you just to make sure there is not any bumps? [ 32 ] THE ACCUSED: Yes, I do not know how it is going to go if I go by myself. [ 33 ] CNSL M. GRIFFITH-ZAHNER: Okay. Well, maybe speak to the officers before you get out and ask if they might be able to, you know, go with you just to make sure there, because I told your dad it was unlikely you were going to get out for a little bit. This is the equivalent of winning the lottery.

So His Honour has been unbelievably considerate to you. So your dad is not going to be expecting you to be there. So just check out with the RCMP before you get out. I am not sure we need a direction from the court about that. I do not think we can do it, anyway. [ 34 ] THE COURT: I am not going to be making a direction and I am not going to be adding a condition to the conditional sentence order -- [ 35 ] CNSL M. GRIFFITH-ZAHNER: Yes. [ 36 ] THE COURT: -- relating to this. [ 37 ] CNSL M. GRIFFITH-ZAHNER: Okay. [ 38 ] THE COURT: It may very well be, Mr.

Griffith-Zahner, that yourself, a counsellor, or somebody at the homeless shelter, somebody can contact his father and explain the situation. From my perspective, I am not in a position to do that. [ 39 ] CNSL M. GRIFFITH-ZAHNER: I see. Mr. Starr, can I contact your dad and tell him that you are getting out? [ 40 ] THE ACCUSED: Yes. [ 41 ] CNSL M. GRIFFITH-ZAHNER: I will make that call, Your Honour. [ 42 ] THE COURT: Thank you very much. [ 43 ] Ms. Ducluzeau, thank you very much. [ 44 ] Mr. Griffith-Zahner, thank you very much. [ 45 ] Mr. Starr, I honestly wish you nothing but the best.

Good luck, sir. ____________________________ D. Patterson, PCJ Provincial Court of British Columbia